Procedural issues: Events prior to entry into force
of Covenant-Continuing
situation-Burden
of proof
-Sufficiency
of State
party's reply under article 4 (2)-Failure of investigation
of allegations
by State party

Substantive issues: Detention incommunicadoConfession under duress-Illtreatment
of
detainees-Ex
officio counsel-Right to adequate counsel-Intimidation
of counsel-Delay
in proceedings-Fair trial-Public hearing-Reformatio in pejus-Torture-Prison
conditions-Denial
of defence
facilitiesState
of health
of victim

Articles
of the Covenant:
7, 10 (1) and 14 (1) and (3) (b), (c) and (d)

Article
of
the Optional
Protocol: 4 (2)

1. The author of the communication (initial letter dated 23 November 1980 and
further submissions dated 25 February and 28 November 1981 and 21 January 1983)
is a Uruguayan national, residing at present in France. He submitted the communication
on behalf of his sister, Elena Beatriz Vasilskis, a 29-year-old Uruguayan student
at present imprisoned in Uruguay.

2.1. The author states that Elena Beatriz Vasilskis was arrested on 4 June 1972,
on the charge of being a member
of a clandestine group which was engaging in armed struggle as a form of political
action (the Tupamaros National Liberation Movement). At this time she was allegedly
tortured and forced to sign a confession which led to her conviction by a military
tribunal of the first instance. The author claims that, in so far as the confession
was illegally obtained and she is still suffering imprisonment, this violation
of her rights has continued after 23 March 1976, the date of the entry into
force of the Optional Protocol for Uruguay.

2.2. Elena Beatriz Vasilskis was allegedly held incommunicado for three months,
whereas Uruguayan law only permits detention for 24 hours prior to being brought
before a judge. Her case was not submitted to the miltiary courts until September
1972, whereas the Constitution and the Code of Military Criminal Procedure prescribe
a maximum intervening period of 48 hours. In the first months after her arrest,
she had no legal assistance.

2.3. The author bases his statements on the testimony of ex-prisoners who were
in the same prison as his sister, who are now in Europe as refugees, and who
allegedly witnessed the torture and maltreatment in prison at first hand and
are prepared to testify to it, if necessary, before the Human Rights Committee.
Furthermore, the author states that throughout the three months when she was
held incommunicado, their father regularly visited her once a week to bring
clean clothing and collect her laundry; this was done at a centralized military
office, since his sister's exact whereabouts were not known. During that time
their father was given parcels of clothing stained with blood, excrement and
hanks of hair.

2.4. Judgement was pronounced by the court of first instance on 14 December
1977. She was sentenced to 28 years of rigorous imprisonment and 9 to 12 years
of precautionary detention, to be added to her sentence and served in the same
prison, for offences against the Constitution, robbery, kidnapping, complicity
in murder and criminal conspiracy. The trial, on appeal, which took place in
May 1980 allegedly violated Uruguayan law by raising the sentence from the 18
years demanded by the prosecutor to 30 years and 5 to 10 additional years of
precautionary detention (medidas eliminativas de seguridad).

2.5. At neither trial, the author claims, did his sister enjoy an adequate defence.
Her first attorney, Dr. Carlos Martinez Moreno, allegedly had to flee the country
to avoid his own arrest; her second attorney, Dr. Adela Reta, was a law professor
who, in view of the political climate, was allegedly forced to abandon all defence
work in political matters. Subsequently, the Military Court appointed Colonel
Otto Gilomen as defence counsel, although he was not a lawyer, owing to the
fact that lawyers for the defence can hardly be found in political cases in
Uruguay. The colonel remained on the case until the final judgement. The trial
took place in secrecy and not even the closest relatives of the accused were
present.

2.6. With respect to the conditions of imprisonment, the author states that
his sister is interned at the EMR No. 2 (Penal Punta de Rieles), which
is used exclusively for the detention of women political prisoners and is not
administered by special personnel instructed in the treatment of women prisoners,
but by military personnel on short assignment. She occupies a cell with 14 other
women prisoners. If she fails to perform her tasks, she is allegedly punished
by solitary confinement for up to three months and by prohibition of visits,
denial of cigarettes, etc. Visits may occur every 15 days and last only half
an hour. The only persons authorized to visit her are close relatives, but no
unrelated friends are allowed. The author claims that the worst part of his
sister's imprisonment is the arbitrariness of the guards and the severity of
the punishment for, inter alia, reporting to her relatives on prison
conditions or speaking with other inmates at certain times. The inmates allegedly
live in a state of constant fear of being again submitted to military interrogation
in connection with their prior convictions or with alleged political activities
in the prison. The author alleges that the penitentiary system is not aimed
at reformation and social rehabilitation of prisoners but at the destruction
of their will to resist. They are given a number and are never called by their
name. Elena Beatriz Vasilskis is No. 433 of Sector B. Psychological pressures
on the inmates are allegedly designed to lead them to denounce other inmates.

2.7. With respect to the state of health of his sister, the author states that
she was in excellent physical health at the time of her arrest. He claims that
as a direct consequence of torture and eight years' imprisonment (at the time
of writing on 7 November 1980) she had diminished vision in both eyes and had
lost 40 percent
of the hearing in her left ear. He states that she also suffers from Raynaud's
disease, which may have been brought about by prolonged detention in a cold
cell and by emotional pressure. Medicines sent to her for the relief of her
condition were allegedly never delivered. The loss of hearing was established
by a doctor at the Military Hospital between October and November 1979. Raynaud's
disease was diagnosed by the cardiovascular specialist at the military hospital
in October 1979. Moreover, the food provided and the conditions of imprisonment
are such that his sister has become extremely thin, has retracted gums and many
cavities in her teeth. This is allegedly due to an unbalanced diet, deficient
in protein and vitamins, and to the almost complete lack of exercise throughout
the day, the intense cold (prisoners are forced to take cold baths in the dead
of winter) and the total absence of natural light in the cells.

2.8.
The author states that the same matter has not been submitted to any other international
body.

2.9. The author alleges that the following articles of the Covenant have been
violated: articles 2, 7, 10 and 14.

3. By its decision of 19 March 1981, the Working Group of the Human Rights Committee
decided that the author was justified in acting on behalf of the alleged victim
and transmitted the communication under rule 91 of the provisional rules of
procedure to the State party concerned, requesting information and observations
relevant to the question of admissibility of the communication.

4. In its submission of 6 October 1981, the State party objected to the admissibility
of the communication on the following grounds:

The situation described in the communication does not constitute a violation
occurring before the date on which the Covenant and the Optional Protocol entered
into force and continuing after that date or having effects which in themselves
constitute a violation. Miss Vasilskis was convicted of serious offences under
Uruguayan criminal law. She is not a political prisoner, as is incorrectly stated
in the communication, nor was she in any way induced to confess her guilt. The
living conditions in Military Detention Establishment (EMR) No. 2 are those
normally prevailing for all female prisoners, that is to say, she is not subject
to the slightest discriminatory treatment and it is completely untrue to state
that she receives insufficient food or is subject to ill-treatment. With regard
to her state of health, she suffers from Raynaud's disease and is receiving
the necessary medical treatment; her present condition can be described as compensated.
The Government of Uruguay therefore rejects the assertions in the communication,
which refer to non-existent violations of human rights.

5.1. On 28 November 1981, the author forwarded his comments in reply to the
State party's submission of 6 October 1981. He reiterates the allegations made
in his previous communications with respect to violations of articles 7 and
10 of the Covenant emphasizing that his sister has been imprisoned for nine
and a half years, alleging that she is still subjected to cruel and degrading
treatment such as endangers her life. He states further that during an inspection
of her cell in October 1981, all reading material was taken away from her as
well as all materials for manual labour which she had hitherto had. Family photographs
sent to her since September 1981 by her parents are said not to have reached
her. He rejects the State party's contention that his sister's situation does
not constitute a violation of her rights subsequent to the entry into force
of the Covenant and the Optional Protocol.

5.2.
With respect to his allegation of discrimination, he indicates that he means
discrimination with regard to political prisoners visa-vis common criminals,
commenting that the former are subjected to worse treatment than the latter,
and alleging in this connection violations of articles 2 and 26 of the Covenant.

5.3. With respect to his sister's state of health, the author deplores that
the State party has not submitted any medical report.

6.1. With regard to article 5, paragraph 2 (a), of the Optional Protocol, the
Human Rights Committee noted that the author's assertion that the same matter
was not being examined under another procedure of investigation or settlement
had not been contested by the State party.

6.2. With regard to the exhaustion of local remedies, the Committee was unable
to conclude, on the basis of the information before it, that there were remedies
available to the alleged victim which she should have pursued. Accordingly,
the Committee found that the communication was not inadmissible under article
5, paragraph 2 (b), of the Optional Protocol.

6.3. On 25 March 1982, the Committee decided:

(a) That the communication was admissible in so far as it related to events
said to have occurred on or after 23 March 1976 (the date of the entry into
force of the Covenant and the Optional Protocol for Uruguay);

(b) That, in accordance with article 4, paragraph 2, of the Optional Protocol,
the State party should be requested to submit to the Committee, within six months
of the date of the transmittal to it of this decision, written explanations
or statements clarifying the matter; that the State party be requested in this
connection to enclose: (i) copies of any court orders or decisions relevant
to this case, including the decision of the Supreme Military Tribunal, referred
to in the communication; and (ii) further information concerning the state of
health of Elena Beatriz Vasilskis, including copies of the existing medical
reports referred to in the communication.

7.1. In its submission under article 4, paragraph 2, of the Optional Protocol,
dated 27 October 1982, the State party rejected the author's allegations that
his sister was subjected to torture and illtreatment and that her conviction
was based on a forced confession, asserting that her confession was obtained
without coercion and that her conviction rested on other evidence duly confirmed
by means of proper procedures which according to Uruguayan law do not entail
public trial by jury. With respect to the delay in commencing her trial, the
State party referred to the extraordinary load placed on the Uruguayan judicial
system by the numerous proceedings during the period of high seditious activity.
Defence lawyers were not persecuted and those who left the country frequently
did so because of their links with subversive groups. The increase of Miss Vasilskis'
sentences was attributable to the emergence of fresh evidence which made the
type of offence more serious.

7.2. The State party also rejects the author's description of Miss Vasilskis
as a "political prisoner", emphasizing that she was involved in crimes such
as murder, kidnapping and robbery.

7.3. With regard to her state of health, the State party indicates that she
is submitted to periodical medical and dental examinations, and that she receives
special medical care where necessary, including treatment for Raynaud's disease.

7.4. Prison conditions are responsive to sociological and psychological studies
intended to facilitate the rehabilitation of the prisoners, who are not subjected
to a climate of arbitrariness or to forced labour.

8.1. In a further letter dated 21 January 1983, the author refers to the State
party's submission under article 4, paragraph 2, and claims that it does not
adequately answer the specific complaints of violations raised in his communication,
which the State party simply rejects without giving any explanation. He reiterates
that his sister was tortured, forced to confess, kept incommunicado, that her
trial was unduly delayed and that defence attorneys have been so intimidated
by the Uruguayan authorities that they are no longer willing to defend persons
like Miss Vasilskis.

8.2. With respect to her state of health, the author indicated that the State
party has failed to identify the medication given to Miss Vasilskis and complains
that medication prescribed for her by French doctors and forwarded to her was
not allowed by prison authorities. In substantiation of his allegations that
prison conditions are such as to cause a worsening of her state of health, the
author quotes a long statement by Renata Gil, a former cellmate of Miss Vasilskis,
according to which the prisoners are deprived of natural light and fresh air
except during one hour per day, and all windows have been covered with plastic
sheets.

8.3. With respect to the treatment of prisoners at Punta de Rieles, the author
refers to the sanctions imposed on some of them following the visit there in
January 1982 of Mr. Rivas Posada, Special Representative of the Secretary-General
of the United Nations. According to Mrs. Zdenka Starke, the mother of one of
the prisoners there, many of the prisoners were beaten up with clubs, items
of their personal property were confiscated, and their food was thrown on the
floor of the cells. Such punishment was inflicted because the prisoners had
made declarations to Mr. Rivas Posada.

9.1. The Human Rights Committee, having examined the present communication in
the light of all the information made available to it by the parties as provided
in article 5, paragraph 1, of the Optional Protocol, hereby decides to base
its views on the following facts, which have not been contradicted by the State
party.

9.2. Events prior to the entry into force of the Covenant: Elena Beatriz
Vasilskis was arrested on 4 June 1972 on the charge of being a member of the
Tupamaros National Liberation Movement. She was held incommunicado for three
months and her case was not submitted to the military courts until September
1972.

9.3. Events subsequent to the entry into force of the Covenant: Judgement
was pronounced by the court of first instance on 14 December 1977. She was sentenced
to 28 years of rigorous imprisonment and 9 to 12 years of precautionary detention.
The trial on appeal took place in May 1980 and the sentence was raised to 30
years and 5 to 10 additional years of precautionary detention
(medidas eliminatives de seguridad). The Military Court appointed Colonel
Otto Gilomen as defence counsel, although he was not a lawyer. The trial took
place in secrecy and not even the closest relatives of the accused were present.

10.1. In formulating its views, the Human Rights Committee also takes into account
the following considerations, which reflect a failure by the State party to
furnish the information and clarifications necessary for the Committee to formulate
final views on a number of important issues.

10.2. In operative paragraph 2 of its decision of 25 March 1982, the Committee
requested the State party to enclose: (a) copies of any court orders
or decisions relevant to the case, and (b) further information concerning
the state of health of Elena Beatriz Vasilskis, including copies of the existing
medical reports. The Committee notes with regret that it has not received any
of these documents.

10.3. With respect to the state of health of the alleged victim, the Committee
finds that the author's precise allegations, which include allegations that
her treatment in prison has contributed to her ill-health, called for more detailed
submissions from the State party. While regard to general prison conditions,
the State party has made no attempt to give a detailed description of what it
believes the real situation to be. Similarly, with respect to general prison
conditions and the serious allegations of ill-treatment made by the author,
the State party has adduced no evidence that these allegations have been adequately
investigated. A refutation of these allegations in general terms, as contained
in the State party's submissions, is not sufficient.

10.4. With regard to the burden of proof, the Committee has already established
in its views in other cases (e.g., 30/1978 - see footnote 1) that said burden
cannot rest alone on the author of the communication, especially considering
that the author and the State party do not always have equal access to the evidence
and that frequently the State party alone has access to relevant information.
It is explicitly stated in article 4, paragraph 2, of the Optional Protocol
that the State party concerned has the
duty to contribute to clarification of the matter. In the circumstances, the
appropriate evidence for the State party to furnish to the Committee would have
been the medical reports on the state of health of Elena Beatriz Vasilskis specifically
requested by the Committee in its decision of 25 March 1982. Since the State
party has deliberately refrained from providing such expert information, in
spite of the Committee's request, the Committee cannot but draw conclusions
from such failure.

11. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political Rights,
is of the view that the facts as found by the Committee, in so far as they continued
or occurred after 23 March 1976 (the date on which the Covenant and the Optional
Protocol entered into force for Uruguay), disclose violations of the International
Covenant on Civil and Political Rights, particularly of:

Articles 7 and 10, paragraph 1, because Elena Beatriz Vasilskis has not been
treated in prison with humanity and with respect for the inherent dignity of
the human person;

Article 14, paragraph I, because there was no public hearing of her case;

Article 14, paragraph 3 (b) and (d), because she did not have
adequate legal assistance for the preparation of her defence;

Article 14, paragraph 3 (c), because she was not tried without undue delay.

12. The Committee, accordingly, is of the view that the State party is under
an obligation to take immediate steps (a) to ensure strict observance of the
provisions of the Covenant and to provide effective remedies to the victim,
and, in particular, to extend to Elena Beatriz Vasilskis treatment as laid down
for detained persons in article 10 of the Covenant; (6) to ensure that she receives
all necessary medical care; (c) to transmit a copy of these views to her; (d)
to ensure that similar violations do not occur in the future (footnote 2).

_______________________

1. Selected
Decisions . . ., vol. 1, pp. 109-112, para. 13.3.

2. By note,
dated 25 March 1985, the State party informed the Committee that Miss Elena
Vasilskis had been released on 12 March 1985, pursuant to the Amnesty Act of
8 March 1985.